Jill Livermore v. Hanover, Town of - Public Schools (SPR 20222671)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2022 SPR22/2671 Matthew Ferron Superintendent of Schools Hanover Public Schools 188 Broadway Hanover, MA 02339 Dear Superintendent Ferron: I have received the petition of Jill Livermore appealing the response of the Hanover Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2022, Ms. Livermore requested: [1] The number of students enrolled in each of the [identified student’s] current classes (all levels); and, [2] The number of students on IEP’s in each of the [identified student’s] current classes (all levels). On November 2, 2022, the School provided Ms. Livermore with a response to her October 19th request. The School provided the information responsive to Request Number 1, but denied access to records responsive to Request Number 2 under Exemptions (a) and (c) of the Public Records Law. Unsatisfied with the School’s response, Ms. Livermore petitioned this office and this appeal SPR22/2671, was opened as a result. Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Ms. Livermore’s interest in obtaining the classroom ratios of students with IEPs and those in the same classroom without IEPs shall have no bearing on the public nature of the record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Superintendent Matthew Ferron SPR22/2671 Page 2 December 5, 2022 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School’s November 2nd Response In its November 2, 2022 response regarding Ms. Livermore’s Request Number 2, the School asserts, “[a]s [Ms. Livermore] may be aware, the [School] has learned that the class composition of certain general education classes in the [School] are not well balanced in terms of general education students and students with IEPs. Given that some of the classes are small, coupled with the class composition, the [School] is not giving out specific class ratios for classes since, in doing so, the disability status of some students is likely to be revealed.” The School cites Exemptions (a) and (c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers,

Superintendent Matthew Ferron SPR22/2671 Page 3 December 5, 2022 Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the School explains, “34 C.F.R. 99.3 (the federal law governing student records provides that ‘personally identifiable information’ that cannot be disclosed to third parties includes ‘other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.’).” The School also asserts, “34 C.F.R. 99.3, 99.31(b)(1) (determining if redaction is necessary involves consideration of the request, the school and community, and the availability to the [requestor] of other information that indirectly identifies the student).” While the School has cited Exemption (a) and the federal regulations, it is unclear how the regulations permit the School to withhold the information from disclosure. Specifically, it is uncertain how the regulations apply to withhold the ratios of students in the specific classroom that have an IEP, nor how disclosure of the ratios would lead to the identification of a specific student. I find that the School must clarify this issue regarding Ms. Livermore’s Request Number 2. Exemption (c) In its November 2nd response, the School also claims Exemption (c) to withhold the student ratios, in each classroom and the students studying particular subjects in each of these classrooms, who are students that have IEPs. Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation

Superintendent Matthew Ferron SPR22/2671 Page 4 December 5, 2022 G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the School asserts, “…consistent with the [Supreme Judicial Court’s] analysis in [Champa v. Weston Pub. Sch., 473 Mass. 86, 97 (2015)] decision, the [School] contends that a child’s disability status is highly personal information, the disclosure of which is an unwarranted invasion of the student’s personal privacy and may result in embarrassment and potentially lead to stigma, thus implicating Exemption (c).” Based on the November 2nd response, I find that the School did not satisfy its burden of specificity under Exemption (c) by not addressing whether the information of ratios of students with IEPs versus students without IEPs is available from other sources. It is additionally uncertain how the information is an intimate detail of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the School must provide additional information with respect to the above balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy under Exemption (c). See PETA, Mass. at 292. The School must clarify this matter.

Superintendent Matthew Ferron SPR22/2671 Page 5 December 5, 2022 Conclusion Accordingly, the School is ordered to provide a response to Ms. Livermore, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jill Livermore